Correction Law § 168–a[2][a][i]; [3][a][i] )

This is a proceeding wherein the petitioner commenced this CPLR article 78 proceeding seeking to annul the determination that he is a sex offender subject to registration pursuant to the Sex Offender Registration Act.

Supreme Court granted the petition and annulled the determination, concluding that petitioner was not subject to SORA’s registration requirements.

The criminal court agrees with respondent that petitioner, who was on probation in Wyoming for sex offenses within the meaning of Correction Law § 168–a(2)(d)(i) on the effective date of SORA, is required to register as a sex offender in New York. Therefore, the court concludes that the judgment should be reversed and the petition dismissed.

SORA, which went into effect on 21 January 1996 imposes registration requirements on sex offenders, i.e., “any person who is convicted of” certain sex offenses enumerated in the statute under Correction Law § 168–a[1]. SORA applies to sex offenders incarcerated or on parole or probation on its effective date, as well as to those sentenced thereafter, thereby imposing its obligations on many persons whose sex crimes were committed prior to the effective date as held in Doe v. Pataki and People v. Carey.

Pursuant to Correction Law § 168–a(2)(d), certain defendants convicted of sex offenses in other jurisdictions must register as sex offenders in New York as in People v. Kennedy. As relevant here, “a person convicted of a felony in another jurisdiction has been subject to registration in New York if the foreign offense ‘includes all of the essential elements’ of one of the New York offenses listed in SORA” akin to Matter of North v. Board of Examiners of Sex Offenders of State of N.Y.

In 1999, the Legislature added another basis for registration arising from a foreign conviction, that is, that an offender must register in New York if he or she was convicted of a felony “for which the offender is required to register as a sex offender in the jurisdiction in which the conviction occurred”. Where a sex offender is convicted in another jurisdiction and then relocates to New York, Correction Law § 168–k (1) provides that he or she “shall notify the division of criminal justice services of the new address no later than [10] calendar days after such sex offender establishes residence in New York.”

The court agrees with the petitioner that the 1999 amendments to Correction Law § 168–a do not apply to petitioner. Those amendments are retroactive only with respect to “persons convicted of an offense committed prior to January 1, 2000 who, on such date, have not completed service of the sentence imposed thereon”.

In the case at bar, petitioner was discharged from probation in Wyoming and thus completed service of his sentence in June 1996. As the court properly concluded and petitioner correctly concedes, however, the crimes of which petitioner was convicted in Wyoming qualify as sex offenses in New York under the “essential elements” provision of Correction Law § 168–a(2)(d)(i).

The ‘essential elements’ provision in SORA requires registration whenever an individual is convicted of criminal conduct in a foreign jurisdiction that, if committed in New York, would have amounted to a registrable New York offense.

It is to be noted that the conduct underlying petitioner’s Wyoming conviction constitutes, inter alia, sexual abuse in the second degree under Penal Law § 130.60[2], that is sexual contact with a child less than 14] and sexual abuse in the first degree under § 130.65[3], that is, sexual contact with a child less than 11], both of which constitute registrable offenses under Correction Law § 168–a[2][a][i]; [3][a][i] ).

It is undisputed that petitioner was “on parole or probation” when SORA went into effect. Petitioner contends, however, that the retroactivity provisions contained in Correction Law § 168–g are limited to individuals who were on probation or parole in New York when SORA went into effect and, inasmuch as he was on probation in Wyoming on that date and his probation term expired before he moved to New York, he is not subject to the statute’s requirements. The court rejects petitioner’s contention.

Pursuant to Correction Law § 168–g(1), the division of parole or department of probation and correctional alternatives in accordance with risk factors pursuant to section [168– l ] shall determine the duration of registration and notification for every sex offender who on the effective date of SORA is then on parole or probation for an offense provided for in section 168–a(2) or (3).

Section 168–g(2) further provides that every sex offender who on the effective date of SORA is then on parole or probation for an offense provided for in section 168–a(2) or (3) shall within [10] calendar days of such determination register with his or her parole or probation officer. On each anniversary of the sex offender’s initial registration date thereafter, the provisions of section [168–f] shall apply.

Any sex offender who fails or refuses to so comply shall be subject to the same penalties as otherwise provided for in SORA that would be imposed upon a sex offender who fails or refuses to so comply with the provisions of SORA on or after such effective date. Assault can be an issue.

The court finds that there is no question that the provisions in Correction Law § 168–g mandating registration for New York probationers on SORA’s effective date did not apply to petitioner, who was still on probation in Wyoming at that time.

Nevertheless, it rejects petitioner’s contention that the retroactivity provisions set forth in that section are limited to those sex offenders who were on parole or probation in New York at the time of SORA’s implementation.

It is to be noted that neither the language of the statute nor the legislative history supports petitioner’s restrictive interpretation. The language of the statute does not differentiate between in-state and out-of-state probationers. The court discerns no such intent in the legislative history. Rather, SORA’s legislative history evinces intent to include all individuals then on parole or probation within its ambit. For example, a 11 July 1995 letter from SORA’s Senate Sponsor to the Governor states that the proposed statute applies to those offenders adjudicated on or after the effective date and to all persons still serving a sentence of incarceration, probation or parole as of the date of enactment.

The Assembly Sponsor likewise stated in a letter to the Governor that the proposed statute applied to “those offenders under supervision or in prison.” That Assembly Sponsor explained that the rationale for applying SORA retroactively was that “sweeping so narrowly as to only reach offenders from enactment forward leaves the majority of sexual offenders cloaked in anonymity” and he noted the low rehabilitation and high recidivism rates for sex offenders . In addition, the budget report with respect to SORA explains that it creates a registry requirement for convicted sex offenders presently on probation or parole and for those sex offenders who will be released from correctional facilities in the future.

SORA is a remedial statute and it therefore must be liberally construed to effect or carry out the reforms intended and to promote justice. A liberal construction is one that is in the interest of those whose rights are to be protected, and if a case is within the beneficial intention of a remedial act it is deemed within the statute, though actually it is not within the letter of the law.

SORA’s objective is to protect communities by notifying them of the presence of individuals who may present a danger and enhancing law enforcement authorities’ ability to fight sex. Individuals such as petitioner who were serving a sentence or on parole or probation in another state at the time of SORA’s implementation are clearly no less dangerous than similarly situated individuals in New York.

Further, the court notes that the statutory construction urged by petitioner and adopted by the court would lead to objectionable and unreasonable consequences. Pursuant to petitioner’s restrictive interpretation of SORA, an sex crimes offender on probation at the time of the statute’s implementation who later moves to New York would be excluded from the notification and registration requirements thereof, while a sex offender on probation in New York at the same time would be subject to such requirements. This interpretation could have the unintended and undesirable effect of encouraging sex offenders convicted in other states to evade the registration requirements of those states by relocating to New York.

The trail court notes that states have a legitimate interest in requiring offenders who commit registrable offenses in other jurisdictions to register in their new state of residence. Otherwise, an offender could avoid sex offender registration requirements simply by moving his or her state of residence, thereby frustrating the purpose behind sex offender registration laws as in People v. McGarghan.

Lastly, contrary to petitioner’s contention, requiring him to register as a sex offender pursuant to Correction Law § 168–k would not result in disparate treatment on the basis of residency. Rather, such an interpretation would subject petitioner to the same registration and notification requirements applicable to a similarly situated individual who was on probation in New York at the time of SORA’s implementation.

Accordingly, the court concludes that the judgment should be reversed and the petition dismissed.

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